Wrongful conviction

April 6, 2011 - by By Simmi Puri

A legal expert is examining how factors like improper expert testimony may derail the justice system

On May 21, 2003, Kathleen Megan Folbigg was found guilty of killing her four children who died over the course of a decade. She was later sentenced to 30 years imprisonment. The widely publicized case sparked a global debate around her innocence. Was Folbigg Australia’s worst female serial killer or was her case a serious breakdown of the justice system, in which a bereaved mother had been wrongfully convicted of murder?

It’s a question that resonated with UBC Law Prof. Emma Cunliffe, whose ground-breaking work focuses on the factors that led to the wrongful accusations of murder against mothers in Canada, Australia and the United Kingdom.

“From the early 1990s up until 2005, there were at least 18 wrongful convictions of parents in Canada, Australia and the United Kingdom,” says Cunliffe. “It’s a distressingly high number and I wanted to understand why this happened in three jurisdictions at about the same time.”

Much of Cunliffe’s research focuses on homicide trials. Specifically, she looks at the way in which experts, such as pathologists who provide medical evidence about an infant’s death, provide testimony.

“One of the extraordinary things I find is that academics and doctors who publish their research in peer-reviewed journals tend to be extremely careful about the limits of their knowledge,” she says. “They identify what they can be sure about and where they are uncertain. But when these same experts come into a courtroom to give testimony they are often much less careful. They run the risk of misleading courts about their capacity to diagnose the causes of an infant’s death.”

Her critical assessment of the relationship between medical research and expert testimony is the only one of its kind. Cunliffe advocates that courts should look closely at the differences between research and testimony and be more critical of experts who have become partisan.

“In my research I saw cases where the expert initially said that a death might be murder or might be from natural causes and then said in court that the death absolutely is murder and can’t be anything else. In these cases, the expert had no new, medically relevant knowledge that would change the original diagnosis. Courts should see warning signs when experts change their story.”

Cunliffe has carefully studied cases such as Folbigg’s, and the medical research on which these cases depend. She found that most pathologists agree that they cannot reliably distinguish between smothering and natural causes of death in very young children.

“No one can be sure how the Folbigg children died,” says Cunliffe. “But our law says that a person is innocent until proven guilty beyond a reasonable doubt. Some of the experts in Folbigg’s case misled the court about the confidence with which they could diagnose murder. In these circumstances, Folbigg is entitled to the benefit of the doubt.”

Cunliffe also recommends that courts examine the cultural assumptions made by these same experts.

“There are cultural stereotypes of what good parenting looks like that play into the diagnosis of murder. Some experts, lawyers and police operate on the belief that murder happens in certain sorts of families. As a result, they unfairly perpetuate a stereotype that families from certain economic or cultural backgrounds are more likely to commit these crimes. Frankly, there is no medical research that suggests that this is a fair way to proceed.”

During the time of Folbigg’s trial, Cunliffe (originally from Australia) was pursuing her Master’s degree at the UBC Faculty of Law. She joined the faculty as a tenure track professor while completing her PhD.

In May last year Cunliffe, together with UBC Law Prof. Christine Boyle, was awarded a research grant of $101,893 by the Social Sciences and Humanities Research Council of Canada (SSHRC) for a three-year research project called “Reconsidering Child Homicide: Investigation, evidence, and fact determination in Canadian cases, 1990—2010.”

The project has produced a survey of child death and child homicide prosecutions in Canada as background to a study of the transcripts of a series of criminal trials. Cunliffe will use this research to identify strategies for improving investigation and fact determination in child homicide cases.

In addition, she conducted a survey of expert evidence in the B.C. Supreme Court and Court of Appeal, with funding from the Law Foundation of B.C. The survey analyses all decisions on the admissibility of expert evidence between 1994 and 2009 and is the first comprehensive study of this kind in Canada. The goal is to identify which types of expertise are most likely to be disputed at trial, and to understand more about the basis on which objections are made.

As for Folbigg, she remains in prison and continues to assert her innocence. Cunliffe’s forthcoming book, Murder, Medicine and Motherhood (Hart Publishing, June 2011), provides a detailed case study of Folbigg’s murder trial and the appeals and explores how legal process, medical knowledge and expectations of motherhood work together when a mother is charged with killing infants who have died in mysterious circumstances. Cunliffe argues that Folbigg was wrongly convicted.